Concerning extending the probationary period of an educator and rescinding a resolution granting an educator tenure Remus v Tonawanda City School Dist., 277 A.D.2d 905 May a school board rescind its resolution granting a "tenure appointment" to a probationary teacher and terminate his or her employment? Must an educator "accept" tenure in order to attain such a status? May an educator's probationary period be extended beyond the "statutory period?" These were the central issues before the Appellate Division, Fourth Department in the Remus case. Jill Remus was appointed as a probationer effective September 5, 1995. On June 4, 1998, the Tonawanda City School Board adopted a resolution, on the recommendation of the Superintendent, to grant her tenure "effective September 2, 1998". About two weeks later school officials learned of, and Remus admitted, certain misconduct on her part. On August 31, 1998, the district offered Remus "an additional year as a probationary teacher." Remus refused the offer. Later that same day the district voted to rescind what it characterized as her "conditional tenure appointment" and terminated Remus "with 60 days' pay." May the probationary period be extended? The Commissioner of Education considered this question in the Mau case [35 CEd 13539]. Apparently it may. Mau and the district agreed to extend his probationary period. The agreement acknowledged that Mau's employment as a teacher was in jeopardy, "and that, in exchange for the extension of time for consideration of a tenure appointment, [Mau] waived any claim to tenure by estoppel." Mau was dismissed during this "extended probationary period." Finding that "there is no evidence in this record demonstrating that [the district's] denial of tenure to [Mau] was in any way improper," the Commissioner dismissed Mau's appeal. Remus sued, contending that she had automatically attained tenure as the result of the board's adopting the June resolution and thus she was entitled to a Section 3020-a notice and hearing before she could be terminated. The district, on the other hand, argued that "tenure had not yet been granted" to her and she was a probationer when she was notified of her dismissal. A majority of the court agreed with the district. According to the court, "[t]here may be an offer and acceptance of tenure before expiration of the probationary period, in which case tenure and all its corresponding benefits will be conferred." In Remus' case, a majority of the Appellate Division decided that the district had "rescinded the conditional tenure appointment during the probationary period before an offer or acceptance" and thus Remus "was never granted tenure."* However, Judges Green and Hayes disagreed with this ruling by the majority of the court. They, in contrast to the majority's view, concluded that the Board's resolution granting Remus tenure was binding on the district notwithstanding the fact her "tenured status" would not take effect until September 2, 1998. Further, in their view, the Board did not have the power to unilaterally to rescind its June vote granting Remus tenure. Nothing in the Board's June resolution, according to the minority, made Remus' tenure status conditional upon the communication of her acceptance of tenured status. Judges Green and Hayes relied on the language set out in Section 2509(2) of the Education Law in their disagreement with the majority. Section 2509(2), they concluded, does not require either a school district to make an offer of a "tenure appointment" to a probationer or an acceptance of such an offer by the employee. Their conclusion: the statute "simply and clearly extends to [a school district] the authority to 'appoint on tenure' at the expiration of a teacher's probationary term or within six months prior thereto". According to the minority opinion, once a school district has exercised its Section 2509(2) authority, "based upon its favorable evaluation of the teacher's performance during the probationary term," its action was final and "[n]othing was left to be done" with respect to granting Remus tenure. Judges Green and Hayes cited Weinbrown v Board of Education, 28 NY2d 474, in support of their decision. The minority's conclusion: Remus was a tenured employee and the district "could not terminate her employment without the due process protections afforded to her by [Section 3020-a of] the Education Law." * If "tenure" is conditioned on the acceptance of an offer of such status by the individual, what is the impact of such a view in situations were tenure by estoppel is involved? Typically the courts have held that "inaction by an appointing authority" that results in the employee attaining "tenure by estoppel" as self-effecting.
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